possibility of Dominic Ongwen testifying in his own defense has been the
subject of a ruling at the International Criminal Court.
October 1, Trial Chamber IX unanimously declined to order a medical examination
of Ongwen to determine whether he is capable of deciding if he wants to
testify. The chamber’s decision followed a request by the defense.
This is the third
request made by the defense for a court-appointed expert to examine Ongwen
since his trial began in December 2016. The chamber partially accepted the first
defense request, which was made at the start of the trial. Following that request, Trial
Chamber IX ordered a psychiatrist to examine Ongwen to determine his current
medical needs. At the start of this year, Trial Chamber IX declined a second
defense request for a similar examination.
To date, the defense has not indicated, at least
publicly, that Ongwen was going to testify in his trial. However, the
possibility of Ongwen testifying has been the subject of formal submissions
that resulted in the October 1 decision.
In their most recent request, the defense wanted the
chamber to invoke Rule 135 of the ICC Rules of Procedure and Evidence. This
rule provides for a trial chamber to order a medical, psychiatric, or
psychological examination of an accused person. The rule says the trial chamber
can do so on its own initiative or at the request of the defense or the
prosecution. It provides for a trial to be adjourned if a trial chamber finds
an accused person is not fit to stand trial.
In the decision,
the chamber said the
defense argued three points in support of their request: a December 2016
psychiatric examination the chamber ordered; a February 2019 report of the
medical officer at the detention center Ongwen is being held; and the
medication Ongwen is taking.
The chamber said it already
considered the December 2016 report in its January
16 decision declining to have a court-appointed expert examine Ongwen to determine
whether he is fit to stand trial. The chamber observed that in the February
2019 report the defense refers to, the medical officer concluded Ongwen was
medically fit to stand trial but remained “cautious of about his [Ongwen’s]
As for the third reason the defense gave to justify its
request, the chamber observed that the defense did not show whether the medication
Ongwen is taking has any side effects that would impair his ability to decide
if he should testify. Instead, the chamber observed, the defense pointed out
“their possible existence.”
“In summary, the Chamber finds that there are no
indications which give rise to an order for a medical examination pursuant to
Rule 135 of the Rules. Accordingly, the Chamber rejects the Request,” wrote the
Before reaching this conclusion, the chamber referred to
a report defense mental health experts wrote in which they addressed the
question of whether Ongwen was able to make a decision to testify. The chamber
said the experts made a recommendation on the issue even though this was not
part of the terms of reference the defense gave them.
“They [the defense experts] advise that ‘caution’ should
be exercised in case Mr Ongwen testifies. They do not give any indication that
the accused would not be able to testify (or take a decision whether to do so)
but seem to be motivated by a concern for his state of health in the framework
of his rehabilitation,” the chamber said.
“Should the accused decide to request leave to testify
and should this leave be granted the Chamber will, of course, follow the advice
provided by the Expert Witnesses and exercise all necessary caution during the
accused’s testimony,” the chamber said.
All the submissions to the
chamber on this issue were filed as confidential. In its October 1 decision,
the chamber ordered that all parties make public redacted versions of their
submissions available within five days of the decision. The defense
public redacted version of their request on Thursday last week. The prosecution
public redacted version on Wednesday last week. The Legal
Representatives for Victims filed their public redacted version on Thursday last
week. The Common
Legal Representative for Victims filed their public version on Monday.
was first published on the International